The State v. Speyer
| Decision Date | 10 December 1907 |
| Citation | 106 S.W. 505,207 Mo. 540 |
| Parties | THE STATE v. JOHN M. SPEYER, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Criminal Court. -- Hon. John A. Rich, Special Judge.
Reversed and remanded.
W. F Riggs for appellant.
Herbert S. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for the State.
(1) The court did not err in admitting in evidence on rebuttal the testimony of defendant given on the two former trials. Kelley's Crim. Law and Prac., sec. 285; Underhill on Crim. Evid., sec. 131. (2) Appellant complains that the evidence did not justify the court in giving an instruction for murder in the first degree. The court did not err in giving such instruction. There was evidence tending to prove that defendant killed his boy to keep his wife from getting possession of him, and the child could not have given any provocation that would have reduced the grade of the crime. State v. Speyer, 182 Mo. 89. Besides, it has been declared the law in this State that the "plea of insanity, tendered by defendant, both by testimony and instructions, was in itself an admission that the act charged against him in the indictment was truly charged." State v. Stubblefield, 157 Mo. 364; State v Pagels, 92 Mo. 300; State v. Welsor, 117 Mo 570; State v. Soper, 148 Mo. 217.
This is the third appeal by defendant in this cause. On the first trial defendant was convicted of murder in the second degree, and, upon appeal, the judgment was reversed and the cause remanded. [State v. Speyer, 182 Mo. 77, 81 S.W. 430.] On the second trial defendant was convicted of murder in the first degree, and, upon appeal, the judgment was reversed and the cause remanded. [State v. Speyer, 194 Mo. 459, 91 S.W. 1075.] Upon the third trial the defendant was again convicted of murder in the first degree, from which judgment, after unsuccessful motions for new trial and in arrest of judgment, he appeals.
The facts are fully and fairly stated by Gantt, P. J., in 182 Mo. 77. If, however, it be thought necessary, other facts developed at this trial will be stated in the course of the opinion.
On the second trial of this cause one Margaret Tennis, a young girl upon whom defendant was charged with having made an assault, and for which he was under arrest at the time of the homicide, was permitted to testify over the objection of the defendant, and in passing upon the admissibility of her testimony this court said: This witness did not testify upon the last trial; but it is contended by defendant that this direction of the court was violated in numerous instances by the prosecuting attorney, and that the court erred in permitting John Martin, the police officer in whose custody defendant was at the time of the killing, to testify, over defendant's objections, that upon the evening he placed defendant under arrest upon the charge of assaulting the girl, "there was a couple of ladies come up to me." . . . "So, then I asked this little girl;" . . . "I asked this party [meaning the girl], if this was the man, and she said, 'Yes.'" The defendant insists that, under the rule announced, the girl would not have been permitted to testify with reference to anything which might have occurred between her and defendant prior to the homicide, and that these remarks of the officer have reference to the same occurrence, and come under the ruling of this court on the last appeal. We are inclined to take the same view of the matter; but as the defendant himself, on July 24, 1902, in a voluntary written statement with reference to the homicide and the attending facts and circumstances, which statement was read in evidence by the State without objection, alluded to the same charge "as this woman had made against him," we do not think the judgment should be reversed on that ground. But we do not intend to be understood as holding that the facts and circumstances connected with said assault should be admitted in evidence upon another trial, should such be had.
It is also claimed by defendant that the court erred in permitting the State to ask Dr. Glasscock, an expert witness, the following question: "Doctor, if that man killed the boy because he feared that he was to be put in jail on a serious charge, and the boy would be neglected and abused, and he killed him for that reason, would you regard that as an evidence that he did not know that it was wrong to kill him?" The only objections interposed by defendant to this question were that it was not in proper form, and that it was "not an examination of anything drawn out in chief." It is clear that there was no error in overruling these objections, as they do not, under our rulings, really amount to such. Complaint is also made of the court's action in permitting the State to ask these further questions of the same witness: "You do not know whether there was any trouble between him and his wife over the boy?" and, "Would the fact that he told the police officer that he and his wife had trouble?" etc. An examination of the record fails to show that defendant made any objection whatever to these questions, and an objection cannot be raised for the first time in the motion for a new trial or on appeal.
In the fourth and fifth assignments of error defendant complains of the action of the court in sustaining an objection made by the State to the introduction in evidence by the defendant of certain letters which purported to have been written by defendant to his wife before the commission of the homicide. These are the same letters whose admissibility was fully discussed by Judge Fox on the last appeal. The court held upon that appeal that the letters were properly excluded as being incompetent for the purpose of proving the affection of defendant for his child. The defendant now contends that although not admissible for that purpose, yet, as the State upon the last trial introduced some evidence tending to show that defendant had abandoned his wife, they were admissible for the purpose of showing that he had not done so. There was really no evidence that could be called such that defendant had abandoned his wife, such supposition having no further support than the testimony of the policeman, Martin, who testified that, in a conversation had with defendant in the jail where he was confined, the defendant told him that Being asked to tell the jury all that was said about the wife as near as he could recall it, witness said, "He simply made the remark that that was all on the earth he had, and his intention was to kill the boy and himself; in words, that is the way he put it." Being again asked to tell all that defendant said about his wife and the boy witness replied, "Well, he said he had a great deal of trouble in life, and he was just getting on his feet, and this coming up he didn't know what was going to be the outcome." To say that by defendant's statement to the policeman that "his son was the only thing on earth for his wife to get" he meant that he did not want his wife to have the boy for the reason that he had separated from her is a bare and unwarranted assumption; and how the further remark of the defendant, that he "had a great deal of trouble in life," could be tortured into meaning that he had trouble with his wife and had separated from her, is beyond comprehension. It is clear, we think, from the evidence that the defendant's greatest concern at the time he was placed under arrest upon the charge made by the girl was the welfare of his little son, whom he did not want to leave, in a large city, among strangers who might mistreat him, the child's mother being many hundreds of miles away, and rather than be separated from him, under the circumstances as they appeared to his bewildered brain, he preferred taking his life as also his own; that he did not succeed in accomplishing his purpose to take his own life was only due to the quick action of the police officer who struck him with his club and took his knife away. There being no evidence that the defendant and his wife had had trouble, and had separated, his motive in killing the boy could not have been revenge upon the mother, but rather apprehension of ill-treatment of the boy by others. Besides, the case was submitted to the jury upon...
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